George David Clements-Siddall v Dunbobbin Hotels Limited

In adversarial civil litigation, the issues for trial are defined by pleadings, agreed case summaries and other pre-trial documents. A party cannot ordinarily introduce a new factual issue in closing submissions. Even without an immediate objection, deciding it may be procedurally unfair if it changes the shape and balance of the case and deprives the other party of a fair opportunity to meet it.

An appellate court may exceptionally reverse a primary factual finding where it is plainly wrong or has no rational basis. Reliance on a manifestly unreliable document, unjustified criticism of a witness and failure to address unchallenged material evidence may meet that threshold. An unguarded drop of 720–725 mm beside an obvious route to facilities, creating a foreseeable injury risk, required guarding.

The appellant, a child represented by his mother and litigation friend, brought a claim under section 1 of the Congenital Disabilities (Civil Liability) Act 1976 following his mother’s fall at the respondent’s hotel spa.

The High Court tried breach of duty as a preliminary issue. The judge found that the fall occurred on the stairs rather than from the raised decking and dismissed the claim. He held alternatively that, if the fall had occurred from the decking, the respondent would have breached its duty by failing to guard the exposed edge.

The appeal concerned whether the location of the fall had been agreed and, if not, whether the judge’s factual finding was sustainable.

Stuart-Smith LJ delivered the judgment, with Lewis and Moylan LJJ agreeing. The appeal was allowed and judgment was entered for the appellant on the issue of breach of duty.

1. Identification of issues. The adversarial process requires parties to identify clearly the issues for determination and to have a fair opportunity to answer each other’s cases. Pleadings, agreed case summaries and skeleton arguments should make the matters agreed and disputed objectively clear. The principles in Al-Medeni v Mars UK Ltd [2005] EWCA Civ 1041, UK Learning Academy Limited v Secretary of State for Education [2020] EWCA Civ 370, Dhillon v Barclays Bank [2020] EWCA Civ 619 and Sainsbury’s Supermarkets Ltd v MasterCard Inc [2020] UKSC 24 supported that approach.
2. Ground 1. Read in context, the pleadings and agreed case summary established that the point from which the fall occurred was not in dispute. The dispute concerned the mechanism of the fall, including whether the claimant slipped or otherwise lost her balance. Raising the location issue for the first time in closing submissions was too late. The absence of an immediate objection did not cure the procedural unfairness because the late issue changed the shape and balance of the case and allowed evidence to be used on a basis different from that on which it had been given.
3. Ground 2. The stringent test for appellate intervention in primary findings of fact, summarised in Staechelin v ACLBDD Holdings Ltd [2019] EWCA Civ 817, was satisfied. The judge relied substantially on a typed note that was unreliable on its terms and was unsupported by evidence tracing its account to the claimant. He materially misjudged the claimant’s evidence, failed to consider unchallenged evidence that her partner was told she had fallen from the decking, and gave no rational reason for rejecting her account of attempting to reach the handrail. His finding that she fell on the stairs was therefore plainly wrong.
4. Breach of duty. The raised decking was an obvious traffic route because the hooks invited guests to use it. A 720–725 mm unguarded drop created a foreseeable risk of injury and required guarding. The judge’s alternative conclusion that the respondent would have been in breach was correct. The defence under section 2 .4(b) of the Occupiers’ Liability Act 1957 would not have availed the respondent because there was no evidence that it had ensured the person responsible for the works was competent and that the works had been properly carried out.

• Court of Appeal (Civil Division) — [2023] EWCA Civ 1300. Appeal allowed; judgment entered for the appellant on breach of duty.
• High Court of Justice, King’s Bench Division, Manchester District Registry — claim no QB-2021-MAN-000063. The judge dismissed the claim after finding that the fall occurred on the stairs, while alternatively finding that a fall from the raised decking would have involved breach of duty.